Friday, May 31, 2013

Practice point: While there is no private right of action against corporate officers for violations of Labor Law's Article 6, plaintiffs brought suit against the individual defendant as an
employer, not as a corporate officer, and so their claims were not precluded. Plaintiffs also were allowed to assert claims against him for violations of the New York Minimum Wage Act and its implementing regulations, including 12 NYCRR 142-2.2. Under the
Act, the individual defendant may be liable for failure to properly compensate plaintiffs if
he was their employer, or if plaintiffs show that the corporate veil should
be pierced. Here, plaintiffs alleged in their complaint that,
during their employment with the corporation, the individual defendant exercised control of the day-to-day operations and that he was their employer under New York
law. They also submitted a plaintiff's affidavit stating that the individual defendant hired and fired employees, supervised and controlled
employees' work schedules, determined the method and rate of pay, kept
employment records, and approved vacations.

Student note: At this pre-answer
juncture, and upon consideration of the economic realities of the case, plaintiffs have stated a cause of action against the individual defendant as an employer within the meaning of Labor Law §§ 190(3) and
651(6). Accordingly, plaintiffs were not required to
show that the corporate veil should be pierced or allege that the individual defendant exercised complete domination and control over the corporation.

Thursday, May 30, 2013

Practice point: The Appellate Division determined that the Supreme Court improvidently exercised its discretion in granting the
motion of the defendant South 4th Street Condos, LLC, to vacate, as against it, a default judgment. Pursuant to CPLR 317, a defendant is entitled to vacatur of a
default judgment if it is established that the defendant did not receive
personal notice of the summons in time to defend and has a potentially
meritorious defense. Here, South 4th established that it did not receive
personal notice of the summons in time to defend. However, while there was no evidence
that it deliberately attempted to avoid notice, it failed to show a potentially
meritorious defense to the plaintiffs' Labor Law § 240 cause of action.

Student note: The decision to set aside a default in answering is left to the
sound discretion of the Supreme Court, and its determination likely will not be disturbed if there is support in the record.

Wednesday, May 29, 2013

Practice point: A plaintiff's inability to identify the
cause of the fall is fatal to the cause of action because a finding that
the defendant's negligence, if any, proximately caused the plaintiff's
injuries would be based on speculation. Here, the moving defendants established their prima facie
entitlement to judgment as a matter of law by submitting, among other things,
the plaintiff's and her husband's deposition testimony which
demonstrated that the plaintiff could not identify the cause of her fall
without resorting to speculation. Although the plaintiff claimed that a bar connected
to the bottom step of the bus caused her to trip, she acknowledged that
she did not see this bar before her fall, and that she did not know which
foot made contact with the bar. She stated that she only assumed that she had
tripped on the bar after she regained consciousness and went looking for
the source of the fall.

Student note: The settled law is that "[w]here it is just as likely that some other factor,
such as a misstep or a loss of balance, could have caused a slip and
fall accident, any determination by the trier of fact as to causation
would be based upon sheer conjecture." Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435.

Tuesday, May 28, 2013

Practice point: It is unlawful to retaliate
against an employee for having opposed statutorily forbidden
discriminatory practices. Here, the defendants demonstrated that the claimant could not make out a prima
facie case of retaliation by showing that the employee's complaints to
her supervisors did not relate to statutorily forbidden discriminatory
practices, and that she, therefore, had not engaged in protected
activity. The cause of action alleging harassment was dismissed inasmuch as New York does
not recognize a common-law cause of action to recover damages for
harassment.

Student note: To make a prima facie showing of retaliation under Executive Law §
296, a claimant is required to show that (1) the claimant was engaged
in protected activity, (2) the claimant's employer was aware that he or
she participated in such activity, (3) the claimant suffered an adverse
employment action based upon his or her activity, and (4) there was a
causal connection between the protected activity and the adverse action. Once this initial showing is made, the burden then shifts to the
defendant to present legitimate, independent, and nondiscriminatory
reasons to support its actions. Assuming the defendant meets this
burden, the claimant would then have the obligation to show that the
reasons put forth were merely a pretext.

Monday, May 27, 2013

For my generation's midwestern families who bore the cost, one station of their cross likely was a kitchen table at which sit a mother and dad, not because they're hungry though they haven't eaten since early morning, but because it's familiar, where they'd always sat and talked, all of them, going all the way back to when the kids were kids. It's late into the night of the day they got word that a son was killed in service, and they're reading aloud his letters, all of which they'd kept, the frank hand-written "Free," citing now-recognizable place-names they'd never even imagined just six months ago, and almost always closing with the well-intentioned, if unavailing, counsel, "Don't worry."

Friday, May 24, 2013

Practice point: A valid release constitutes a complete bar to an action on a claim which is the subject of the release. Where
the language is clear and unambiguous, the release is binding on the
parties unless it is shown that it was procured by fraud, duress,
overreaching, illegality or mutual mistake.

Student note: A release will not be
treated lightly because it is a a jural act of high significance
without which the settlement of disputes would be rendered all but
impossible.

Thursday, May 23, 2013

Practice point: The court determined that the action was not barred by Real Property Law § 442-d, which provides that an unlicensed person may not bring an action to recover a commission for facilitating the sale of real estate. The contract between the parties did not provide for plaintiff, who is not a licensed real estate broker, to receive a commission based on the sale of the property. Rather, it provided that, upon the sale of the property at a specified minimum selling price, plaintiff would be paid a bonus for, among other things, past management services rendered by him. In addition, although plaintiff was motivated to see the property sell above the minimum price, he was not the procuring cause of the real estate transaction. Defendant retained and paid a real estate broker to sell the property.

Student note: The court also determined that plaintiff's breach of contract claim was not barred by the statute of limitations. The alleged breach for nonpayment under the terms of the contract did not occur until the property was sold, less than six years before the action was commenced (see CPLR § 213).

Wednesday, May 22, 2013

Practice point: Defendants' motion for summary judgment dismissing the complaint was granted. In the absence of any evidence that defendants assumed an affirmative duty to protect plaintiff from attacks by her husband, defendants do not owe a duty of care to plaintiff. The statements allegedly made by police officers and other employees of defendants - that plaintiff's husband would spend time in jail, and that the police would provide protection of an unspecified nature - were too vague to constitute promises giving rise to a duty of care.

Student note: The lack of any such duty also warranted the dismissal of the infant plaintiff's claim for negligent infliction of emotional distress.

Tuesday, May 21, 2013

Practice point: Defendant established its entitlement to judgment as a matter of law where plaintiff was injured when he slipped and fell on a
worn marble tread as he was going down the stairs in defendant's building.
The worn marble tread is not an actionable defective condition, and, other than stating that he slipped, plaintiff
was unable to explain the cause of his fall. He expressly said that he
did not slip on any dirt or debris that may have been present.

Student note: The fact that defendant's superintendent was aware that the marble step was worn
is irrelevant where the alleged defective condition is not actionable. In addition, the opinion of plaintiff's expert that the
steps were worn and could cause one to slip is speculative, and plaintiff cited no applicable Building Code violations connecting his injuries to any alleged defective condition.

Monday, May 20, 2013

Practice point: In opposing a motion to dismiss pursuant to CPLR 3211(a)(8), on the
ground that discovery on the issue of personal jurisdiction is
necessary, a plaintiff need not make a prima facie showing of
jurisdiction, but must only set forth a sufficient start and
show that its position is not frivolous.

Here, plaintiff's president's affidavit established
that facts may exist to support the exercise of personal jurisdiction
over the defendant, and thus the plaintiff made a sufficient start in
showing that further discovery on the issue of personal jurisdiction is warranted. Under those circumstances, the Supreme
Court should have exercised its discretion pursuant to CPLR 3211(d) to
deny the motion without prejudice to renew upon the completion of
such discovery.

Student note: The jurisdictional issue is likely to be complex. Discovery
is desirable and may be essential, and likely will lead to a more accurate judgment than one made solely on the
basis of inconclusive preliminary affidavits.

Friday, May 17, 2013

Practice point: In this trip and fall action, plaintiff's notice of claim listed the
wrong street address (390 Central Park West rather than 360 Central Park
West) in describing the location of her fall on a sidewalk, adjacent to
Central Park, and across the street from that address. However,
plaintiff also annexed a photograph to the notice of claim which
depicted the intersection of Central Park West and 96th Street, which is
nearly four blocks south of the incorrect address provided in the
notice of claim, and the written description of the location in the
notice was consistent with the area depicted in the photograph.
Moreover, at the statutory hearing held six weeks after the notice was
served, and three and a half months after the accident, plaintiff
explicitly testified that her accident occurred on the sidewalk just a
few car lengths south of the 96th Street intersection, and identified
the location in the photograph as also shown. In addition, less
than five months after the hearing, plaintiff served the summons and
complaint, providing the proper street address. Under these
circumstances, the Appellate Division found that the mistake in the notice was not made in
bad faith, nor was it intended to mislead or confuse the City, and so it should have been disregarded or plaintiff should have been
allowed to correct the notice pursuant to GML § 50-e(6).

Student note: Municipalities must put forth at
least a modicum of effort to investigate a notice of claim and to
obtain missing information. Here, defendant never sent anyone to
investigate the scene depicted in the photograph, and did not perform a
computerized record search of the incorrect address until more than two
years after being apprised of the correct location at the hearing.
Although plaintiff served a bill of particulars six months before the
computer search with the same typographical error in the address,
defendant still made no effort to ascertain which of the two locations
was correct. In any event, plaintiff's discovery responses, served
less than one week after this computer search, provided additional
photographs showing the sidewalk defect at issue, and a building awning
with the street number "360" is clearly visible directly across the
street in the background. Moreover, defendant engaged in settlement
discussions just a few months later, during which the actual accident
location was discussed, and did not file the instant motion alleging
confusion as to the accident location until nearly a year and a half
later - one week after entering into a so-ordered stipulation to provide
discovery for the proper location that was explicitly set forth in the
order.

Thursday, May 16, 2013

Practice point: When a term or clause is ambiguous, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact.

Student note: Whether a writing is ambiguous is a question of law to be resolved by the courts. There is ambiguity if the language is written so imperfectly that it is susceptible to more than one reasonable interpretation

Wednesday, May 15, 2013

Practice point: Since the defendants' property, a two-family house, was owner-occupied
and used exclusively for residential purposes, the defendants were
exempt from liability imposed pursuant to Administrative Code of the
City of New York § 7-210(b) for negligent failure to remove snow and ice
from the sidewalk. Thus, the defendants may be held liable for a hazardous snow and ice
condition on the sidewalk only if they undertook snow and ice removal
efforts that made the naturally occurring condition more hazardous or
caused the defect to occur because of a special use.

Student note: Unless one of these factors is present, an abutting owner of a
two-family residence may not be held liable for the removal of snow and
ice in an incomplete manner.

Tuesday, May 14, 2013

Practice point: Defendants failed to offer a plausible excuse as to why they failed
to secure a sworn statement from plaintiff's foreman although 2½ years
had transpired since plaintiff's deposition where defendants learned of
the foreman's involvement at the accident site. Accordingly, the court denied defendants a
further extension of the time in which to file their summary judgment
motion so as to permit them to obtain and incorporate such statement in
the motion.

Student note: Since defendants failed to show any new facts which were not previously considered
by the court on the original motion, their motion to renew and reargue
was actually one for reargument only, the denial of which is
nonappealable.

Monday, May 13, 2013

Practice point: Photographs which fairly and accurately represent the accident
site may be used to establish that a defect is trivial and not
actionable. Here, the photographs submitted by the school district depict a lengthy crack in the pavement which was at least
¾ of an inch deep and approximately 4 inches wide at the specific site
of the accident. Given the high-traffic location of the occurrence, the
length, depth, width, and irregularity of the defect, and the
circumstances of the accident as set forth in witness testimony, the
school district failed to meet its prima facie burden of establishing
that the defect was trivial and nonactionable as a matter of law.

Student note: In determining whether a defect is trivial, courts must examine
all of the facts presented, including the width, depth, elevation,
irregularity, and appearance of the defect, and the time, place, and
circumstances of the accident. There is no minimal
dimension test or per se rule that a defect must be of a certain
minimum height or depth in order to be actionable.

Friday, May 10, 2013

Practice point: Plaintiff alleged that he fell and sustained injuries when the ladder on
which he was standing while painting a foyer outside third-party
defendant's apartment twisted and then slipped out
from underneath him. However, the affidavit of the third-party defendant, who
hired plaintiff's employer and was in his apartment at the time of the
accident, states that no ladders were being used on the project on the
date of the alleged accident. Accordingly, the affidavit raised an issue
of fact concerning whether plaintiff's accident occurred as alleged. In
addition, defendant submitted medical reports wherein plaintiff was
quoted as providing a different description of the accident from that
alleged.

Student note: Even if the reports are hearsay, they
may be submitted in opposition to plaintiff's motion, and may bar
summary judgment when considered in conjunction with other evidence.

Thursday, May 9, 2013

Practice point: Where a party seeks to disqualify its adversary's counsel during litigation, courts consider when the challenged interests
became materially adverse in order to determine if the party could have moved at
an earlier time. If the moving party was aware, or should have
been aware, of the facts underlying an alleged conflict of interest for
an extended period of time before bringing the motion, that party may be
found to have waived any objection to the representation. What is more, if the moving party knew of the alleged conflict of
interest well before making the motion, it may be inferred that the
motion was made merely to secure a tactical advantage.

Student note: The party
seeking to disqualify a law firm or an attorney bears the burden to show
sufficient proof to warrant such a determination. Whether to disqualify an attorney is a matter which lies within the sound discretion of the court.

Wednesday, May 8, 2013

Practice point: Liability is not supported by an expert offering only conclusory
assertions and mere speculation that the condition could have been
discovered and successfully treated had the doctors not deviated from
the accepted standard of medical practice.

Student note: Failing to investigate an otherwise unindicated disease is not malpractice.

Tuesday, May 7, 2013

Practice point: The ultimate purpose of a constructive trust is to
prevent unjust enrichment, and it will be imposed when property has
been acquired in such circumstances that the holder of the legal title
may not in good conscience retain the beneficial interest.

Student note: The elements of a constructive trust are a confidential or fiduciary
relationship, a promise, a transfer in reliance thereon, and unjust
enrichment. These requirements, however, are not to be rigidly applied.

Monday, May 6, 2013

Practice point: A party may amend its bill of particulars once as of course before the filing of the note of issue, pursuant to CPLR 3042[b].. Here, when plaintiff served his amended bill of particulars,
the court had vacated the original note of issue. A second note of issue had not been filed, and plaintiff had not yet amended his bill of particulars. Therefore,
plaintiff properly served his amended bill of particulars without
obtaining leave from the court.

Student note: An affidavit submitted in opposition to a motion for summary
judgment does not raise a triable issue of fact where the affidavit can
only be considered to have been tailored to avoid the consequences of .
. . earlier testimony. A court can infer dishonest intent where
there is no supporting evidence for the contradictory affidavit. However, evidence in the record apart from the
affidavit itself can raise a triable issue of fact, notwithstanding
contradictory deposition testimony.

Friday, May 3, 2013

Practice point: Public Authorities Law § 1212(3) imposes liability upon the Transit
Authority for the negligence of its employees in the operation of the
subway system. Although it is a common carrier, the Transit Authority is
held to a duty of ordinary care under the particular circumstances of
each case. In Crosland v New York City Tr. Auth., 68
NY2d 165 [1986], the Court of Appeals held that the Transit Authority
could be held liable for the negligent failure of its employees to
summon aid as they watched a gang of thugs fatally assault a passenger. "Watching someone being beaten from a vantage point
offering both safety and the means to summon help without danger is
within the narrow range of circumstances which could be found to be
actionable." id. at 170 [citation omitted]

Here, plaintiffs were police officers who were injured in a subway station
while a perpetrator struggled to resist their attempt to arrest him. The
arrest stemmed from a criminal act that was committed in the street in
plaintiffs' presence. The perpetrator fled and was chased by plaintiffs
into the subway station. Upon entering the station plaintiffs, who were
in plainclothes, displayed their shields and asked the station agent to call for backup support. At the time, the agent was inside a
locked token booth that was equipped with an Emergency Booth
Communication System (EBCS) that would
have enabled him to summon help by pressing a button or stepping on a
pedal. Both plaintiffs were injured when the perpetrator put up a fierce
and protracted struggle to resist arrest. The agent watched the struggle
from his token booth and did not activate the EBCS or make any other
attempt to summon help. Plaintiffs' theory was that the agent's failure to
call for help constituted negligence which was a proximate cause of
their injuries. The trial court granted the Transit Authority's motion
for judgment, finding that the agent was under no duty to call for any
assistance to plaintiffs. The Appellate Division reversed.

Student note: The broad definition of onlooker liability articulated by the Crosland Court
does not lend itself to any exception based upon an injured party's
status as a police officer. To be sure, General Obligations Law § 11-106
gives police officers as well as firefighters, who are injured in the
line of duty, a distinct right of action against tortfeasors that cause
such injuries. Here, plaintiffs' recovery was not barred by their
status as police officers and the Transit Authority's liability was
established at trial.

Thursday, May 2, 2013

Practice point: On a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted
conclusively establishes a defense to the asserted claims as a matter of
law. Here, defendant submitted documentary evidence in
the form of the employment application, which demonstrated that the
plaintiff contractually agreed to commence any lawsuit no more than six months after the date of the employment action
that was the subject of the claim. Since the plaintiff commenced this action more than six months after the date his employment was terminated,that claim was dismissed.

Student note: The parties to a
contract may agree to limit the period of time within which an action
must be commenced to a period shorter than that provided by the
applicable statute of limitations. Absent proof that the contract is one of
adhesion or the product of overreaching, or that the altered period is
unreasonably short, the abbreviated period of limitation will be
enforced.

Wednesday, May 1, 2013

Practice point: Plaintiff was injured when he fell after the six-foot baker's
scaffold upon which he was working shifted, despite the fact that he had
locked the wheels; it is undisputed that the scaffold lacked
guardrails. Such evidence establishes that plaintiff's injuries were
proximately caused by defendants' failure to provide proper protection
against the elevation-related risk.

Student note: Given that the scaffold was inadequate in the first instance, any
failure by plaintiff to hydrate himself could not be the sole proximate
cause of his injuries.

John Diekman...

...is a St. Louis native, a Vietnam veteran, a former speech professor, and an attorney who studied law in the evening, matriculating at 50.

Disclaimer

NEW YORK LAW NOTES is published solely as a resource for New York practitioners and students of New York practice. It is not intended to offer legal advice, and it does not offer legal advice.
The exchange of information, by electronic mail or otherwise, relating in any way to NEW YORK LAW NOTES is not intended to create an attorney-client relationship, and it does not create an attorney-client relationship.